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Land at Barty Farm (14/506738/OUT)Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONS
DATED
MAIDSTONE BOROUGH COUNCIL
-and –
LOUISE BARR
-and -
BARTY HOUSE NURSING HOME LIMITED
-and-
NATIONAL WESTMINSTER BANK PLC
DEED OF AGREEMENT PURSUANT TO
SECTION 106 OF THE TOWN AND COUNTRY PLANNING ACT 1990
RELATING TO THE DEVELOPMENT OF
LAND LYING TO THE NORTH EAST OF ROUNDWELL (AKA BARTY FARM), BEARSTED, MAIDSTONE
Planning Application Ref No 14/506738/OUT
Head of Mid Kent Legal ServicesMaidstone Borough CouncilMaidstone HouseKing StreetKent ME15 6JQRef.: M008057
Land at Barty Farm (14/506738/OUT)Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONS
Land at Barty Farm (14/506738/OUT)Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONS
CONTENTS
RECITALS................................................................................................................................4
OPERATIVE PROVISIONS.....................................................................................................5
1. Definitions.........................................................................................................................5
2. Interpretation...................................................................................................................10
3. Legal Basis......................................................................................................................11
4. Conditionality...................................................................................................................12
5. Covenants and Obligations of the Owner.......................................................................12
6. Covenants and Obligations of the Borough Council.......................................................13
7. Covenants and Obligations of the County Council..........................................................13
8. Release and Exclusions..................................................................................................13
9. Determination of the Planning Permission......................................................................13
10. Disputes and Expert Determination.............................................................................14
11. Notices.........................................................................................................................17
12. Local Land Charge......................................................................................................20
13. Successors in Title......................................................................................................20
14. Powers of the Council..................................................................................................21
15. Severability..................................................................................................................21
16. Rights of Third Parties.................................................................................................21
17. Change of Ownership and New Interest......................................................................21
18. Waiver.........................................................................................................................22
19. Indexation....................................................................................................................22
20. Interest.........................................................................................................................22
21. VAT..............................................................................................................................23
22. Agreements and Declarations.....................................................................................23
23. Jurisdiction...................................................................................................................23
24. Delivery........................................................................................................................23
Land at Barty Farm (14/506738/OUT)Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONSSCHEDULE 1: THE LAND.....................................................................................................26
SCHEDULE 2: PHASING.......................................................................................................27
SCHEDULE 3: FINANCIAL CONTRIBUTIONS TO THE BOROUGH COUNCIL..................30
SCHEDULE 4: AFFORDABLE HOUSING (WHERE THERE IS PHASING).........................33
SCHEDULE 5: LANDSCAPE AND ECOLOGICAL MANAGEMENT.....................................42
SCHEDULE 6: FINANCIAL CONTRIBUTIONS TO THE COUNTY COUNCIL......................54
APPENDIX 1: PLAN...............................................................................................................67
APPENDIX 2: DRAFT CONDITIONS.....................................................................................69
APPENDIX 3: DEED OF NOMINATIONS..............................................................................70
APPENDIX 4: AFFORDABLE HOUSING LAND....................................................................71
Land at Barty Farm (14/506738/OUT) Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONS
THIS DEED OF AGREEMENT is dated the day of
BETWEEN
1) MAIDSTONE BOROUGH COUNCIL of Maidstone House King Street Maidstone
Kent ME15 6JQ (the “Borough Council”) and
2) LOUISE BARR of Orchard House, East Lenham Farm, Lenham, Maidstone, Kent
ME17 2DP (the “Owner 1”)
3) BARTY HOUSE NURSING HOMES LIMITED (Company resgistration number
3949942) whose registered office is at Russell House Oxford Road Bournemouth
BH8 8EX (“ Owner 2”)
4) NATIONAL WESTMINSTER BANK PLC (Company registration number 929027)
whose registered office is at 135 BISHOPSGATE LONDON EC2M 3UR (“The Mortgagee”)
RECITALS
A. The Borough Council is the local planning authority and local housing authority for
the area within which the Land is situated
B. The Application was made to the Borough Council for the Development
C. The Borough Council by its Planning Committee at its meeting held on 12 January
2017 resolved that planning permission be granted for the Development subject to
conditions and the prior completion of this Deed (without which planning permission
would have been refused) making provision for inter alia planning obligations
E Owner 1 and Owner 2 shall collectively be known as the Owner
D. The Owner is a person interested in the Land by virtue of being the registered
proprietor with freehold title absolute of the Land as set out in Schedule 1
E. The Mortgagee is a person interested in the Land by virtue of being the proprietor of
a registered charge on part of the Land as set out in Schedule 1
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SUBJECT TO FURTHER INSTRUCTIONSF. The Parties agree that the obligations contained in this Deed are necessary to make
the Development acceptable in planning terms, directly relate to the development and
fairly and reasonably relate in scale and kind to the Development in accordance with
Regulation 122 of the Community Infrastructure Levy Regulations 2010
G. The Owner has agreed to enter into this Deed to regulate the Development and to
give effect to the terms of the resolution of the Borough Council’s Planning
Committee hereinbefore recited which Deed may also secure other planning benefits
H. The Borough Council is a Local Authority for the purposes of Section 111 of the Local
Government Act 1972 and is satisfied that the arrangements made in this Deed will
facilitate be conducive to and be incidental to the Borough Council’s functions
I. The Kent County Council is the education authority the local highway authority the
transport authority the social care authority and the libraries authority for the area
within which the Land is situated
J. This Deed is made pursuant to Section 106 of the 1990 Act and to the extent that any
obligations contained in this Deed are not planning obligations for the purposes of the
1990 Act they are entered into by the Borough Council pursuant to the powers
contained in section 111 of the Local Government Act 1972 sections 12 and 93 of
the Local Government Act 2003 section 1 of the Localism Act 2011and all other
powers so enabling
OPERATIVE PROVISIONS
IT IS AGREED as follows
1. DEFINITIONS
1.1 Unless the context otherwise requires where in this Deed the following defined terms
and expressions are used they shall have the following respective meanings and
(where applicable) be supplemented by the interpretation provisions contained in
Paragraphs 1.1 to the relevant Schedule
“1990 Act” means the Town and Country Planning Act 1990 (as
amended)
“All in Tender Price means the All in Tender Price Index published by the
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Index” Building Costs Information Service on behalf of the
Royal Institution of Chartered Surveyors
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SUBJECT TO FURTHER INSTRUCTIONS
“Application” means the application for outline planning permission
submitted by Crabtree & Crabtree (Bearsted) Limited to
the Borough Council to carry out the Development at
the Land and given the registered reference number
14/506738/OUT
“Borough Council Contributions”
means the financial contributions payable to the
Borough Council pursuant to Schedule 3 comprising
a) the NHS Healthcare Contribution
b) the Railway Station Improvement Contribution
“Commencement of Development”
means the carrying out of a material operation as
defined in section 56(4) of the 1990 Act which is not a
Preparatory Operation and the words “Commence” and “Commenced” shall be construed accordingly
“County Council”
“County Council Contributions”
Means the Kent County Council of County Hall Maidstone Kent ME14 1XQ who are the education authority the local highway authority the transport authority the social care authority and the libraries authority for the area within which the Land is situated
means the financial contributions payable to the County
Borough Council pursuant to Schedule 3 comprising
a) the Community Learning Contribution
b) the Community Facilities Contribution
c) the Libraries Contribution
d) the Secondary Education Contribution
e) the Primary Education Contribution
f) the Public Rights of Way Contribution
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g) the Youth Services Contribution
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“Deed” means this deed of agreement together with all
Schedules and Appendices
“Development” means the erection of up to 100 (one hundred)
Dwellings, including access, on the Land as set out in
the Application pursuant to the Planning Permission
“Dwelling” means any residential unit to be erected on the Land
pursuant to the Planning Permission including for the
avoidance of doubt the Open Market Dwellings and
Affordable Dwellings including any Flats
“General Building Cost Index”
means the General Building Cost Index as published by
the Building Costs Information Service on behalf of the
Royal Institution of Chartered Surveyors
“Index Linked” means adjusted by reference to the relevant index
pursuant to the provisions of Clause 19 SAVE THAT where reference is made to an index and that index
ceases to exist or is replaced or rebased then it shall
include reference to any index which replaces it or any
rebased index (applied in a fair and reasonable manner
to the periods before and after rebasing under this
Deed) issued or caused to be issued from time to time
by the Building Costs Information Service Royal
Institute of Chartered Surveyors or other appropriate
body and as may commonly be used in place of that
index and as approved by the Borough Council or
County Council (as the case may be) or in the event
the index is not replaced to an alternative reasonably
comparable basis or index as the Borough Council or
the County Council (as the case may be) shall approve
“Interest Rate (Borough Council)”
for the purposes of Clause 20 means 4% per annum
above the base lending rate of Lloyds Bank PLC from
time to time applicable at the actual date of payment
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SUBJECT TO FURTHER INSTRUCTIONS
“Interest Rate (County Council)”
for the purposes of Clause 20 means interest at 4% per
annum above the base lending rate of National
Westminster Bank plc from time to time applicable at
the actual date of payment
“Land” means the land against which this Deed may be enforced
as detailed in Schedule 1 and shown for identification
purposes only edged red on the Plan
“Occupy” means taking beneficial occupation of a building
forming part of the Development for any purpose
authorised by the Planning Permission but not including
occupation by personnel engaged in construction fitting
out finishing or decoration of that building nor
occupation in relation to site and building security
operations and “Occupation” “Occupier” or
“Occupied” shall be construed accordingly
"Open Market Dwellings" means those Dwellings for sale on the open market
and which are not Affordable Dwellings
“Parties” means the Owner the Borough Council and the County
Council as the context so requires and “Party” means
any one of them
“Plan” means the plan entitled “Site Location Plan” (Drawing
No 2527-20D) prepared by BDB Design and dated
December 2014 annexed as Appendix 1
“Planning Permission” means planning permission for the Development to be
granted pursuant to the Application subject to
conditions a draft of which is annexed as Appendix 2
“Practical Completion” means the proper issue of one or more certificate(s) of
practical completion of any works carried out pursuant
to this Deed or as the context may allow any part
section or phase thereof by an independent architect
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civil engineer chartered surveyor or other certifying
professional (as the case may be) and the term
“Practically Complete” shall be construed
accordingly
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“Preparatory Operation” means an operation or item of work of or connected
with or ancillary to
a) archaeological investigation
b) exploratory boreholes and trial pits
c) site clearance (but excluding demolition of any
building or structure)
d) diversion decommissioning and/or laying of
services for the supply or carriage of water
sewerage gas electricity telecommunications or
other media or utilities
e) the erection of fences and hoardings around the
Land and
f) construction of temporary access and service roads
“Reserved Matters Application”
means an application for approval of reserved matters
in accordance with the Planning Permission
“Reserved Matters Approval”
means an approval given by the Borough Council of a
Reserved Matters Application
“Section 106 Monitoring Officer”
means the Borough Council’s section 106 Monitoring
Officer or such other officer as may be lawfully
designated by the Borough Council for the purposes of
discharging such duties and functions
“Statutory Undertakers” means any public gas transporter water or sewerage
undertaker electricity supplier or public
telecommunications operator
“VAT” means Value Added Tax as referred to in the Value
Added Tax Act 1994 (or any tax of a similar nature
which may be substituted for or levied in addition to it)
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SUBJECT TO FURTHER INSTRUCTIONS
“Working Day” means a day which is not a Saturday Sunday bank
holiday in England (as defined in paragraph 1 of
Schedule 1 to the Banking and Financial Dealings Act
1971) or other public holiday
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SUBJECT TO FURTHER INSTRUCTIONS2. INTERPRETATION
2.1 A reference to any Clause Plan Paragraph Schedule Appendix or Recital such
reference is a reference to a Clause Plan Paragraph Schedule Appendix or Recital
in (or in the case of plans attached to) this Deed
2.2 The headings in this Deed are for convenience only and shall not be deemed to be
part of or taken into consideration in the interpretation of this Deed
2.3 Words importing the singular include the plural and vice versa
2.4 Words importing the masculine gender include the feminine and neuter genders and
vice versa
2.5 Words denoting actual persons include companies corporations and firms and all
such words shall be construed as interchangeable in that manner
2.6 Reference to any Party to this Deed shall include the successors in title to that Party
and to any person deriving title through or under that Party and in the case of the
Borough Council shall include any successor to its statutory functions
2.7 Wherever there is more than one person named as a Party and where more than one
Party undertakes an obligation all their obligations can be enforced against all of
them jointly and against each individual severally
2.8 Words denoting an obligation on a Party to do any act matter or thing include an
obligation to procure that it be done and words placing a Party under a restriction
include an obligation not to cause permit or suffer any infringement of the restriction
2.9 References in this Deed to statutes bye-laws regulations orders and delegated
legislation shall include any statute bye-law regulation order delegated legislation
plans regulations permissions and directions amending re-enacting consolidating
replacing or made pursuant to the same as current and in force from time to time
2.10 In the event of any conflict between the terms conditions and provisions of this Deed
and any document attached hereto or referred to herein the terms conditions and
provisions of this Deed shall prevail
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SUBJECT TO FURTHER INSTRUCTIONS2.11 Any words following the terms including include in particular for example or any
similar expression shall be construed as illustrative and shall not limit the sense of
the words description definition phrase or term preceding those terms
3. LEGAL BASIS
3.1 This Deed is made pursuant to section 106 of the 1990 Act section 111 of the Local
Government Act 1972 section 278 of the Highways Act 1980 section 33 of the Local
Government (Miscellaneous Provisions) Act 1982 sections 12 and 93 of the Local
Government Act 2003 section 1 of the Localism Act 2011 and any other enabling
powers
3.2 The covenants obligations restrictions and requirements imposed upon the Parties
by this Deed
3.2.1 are entered into pursuant to the provisions of section 106 of the 1990
Act
3.2.2 are planning obligations for the purposes of section 106 of the 1990
Act
3.2.3 relate to the Land
3.2.4 are entered into with intent to bind the Owner’s interest(s) in the Land
as set out in Schedule 1 and each and every part thereof into whosoever
hands the same may come
[3.2.5] are enforceable by the Borough Council and the County Council as local
planning authority
3.2.5[3.2.6] are executed by the respective Parties as a deed
3.3 To the extent that any covenants obligations restrictions and requirements
contained in this Deed are not planning obligations within the meaning of the 1990
Act they are entered into by the Borough Council pursuant to the powers contained
in section 111 of Local Government Act 1972 section 278 of the Highways Act 1980
section 33 of the Local Government (Miscellaneous Provisions) Act 1982 sections 12
and 93 of the Local Government Act 2003 Section 1 of the Localism Act 2011and all
other powers so enabling
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SUBJECT TO FURTHER INSTRUCTIONS4. CONDITIONALITY
4.1 With the exception of this Clause 4 and Clauses 1 2 3 5.3 5.4 and 8 to 25
inclusive (which take effect immediately on the date of this Deed) this Deed is
conditional on the of the grant and issue of the Planning Permission
5. COVENANTS AND OBLIGATIONS OF THE OWNER
5.1 The Owner covenants with the Borough Council to perform the obligations and
observe the relevant restrictions contained herein
5.2 The Owner shall permit the Borough Council and its authorised employees and
agents upon reasonable notice to enter the Land at all reasonable times for the
purposes of verifying whether or not any covenants obligations restrictions and
requirements arising under this Deed have been performed or observed SUBJECT TO compliance by the Borough Council and its authorised employees and agents at
all times with the Owner’s site regulations and requirements and health and safety
law and good practice
5.3 The Owner covenants to pay before completion of this Deed
5.3.1 the Borough Council’s reasonable legal and administrative costs and
disbursements in connection with the negotiation preparation and execution
of this Deed
whether or not this Deed is delivered in accordance with Clause 26
6. COVENANTS AND OBLIGATIONS OF THE BOROUGH COUNCIL
6.1 The Borough Council covenants with the Owner that subject to the Owner carrying
out and observing the Owner’s covenants obligations restrictions and requirements
as set out herein it will perform the Borough Council’s covenants as set out herein
7. MORTGAGEE’S CONSENT
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SUBJECT TO FURTHER INSTRUCTIONS7.1 The Mortgagee acknowledges and declares that this Deed has been entered into by
the Owner with its consent and that the Land shall be bound by the obligations
contained in this Deed and that the security of its charge over the Land shall take
effect subject to this Deed PROVIDED THAT the Mortgagee shall have no liability
under this Deed unless it takes possession of the Land or any part of the Land in
which case the Mortgagee will be bound by the provisions of this Deed as a person
deriving title from the Owner
8. RELEASE AND EXCLUSIONS
8.1 Save for Clause 5.2 the obligations contained in this Deed shall not be binding upon
nor enforceable against
8.1.1 any Statutory Undertaker with any existing interest in any part of the Land or
acquires an interest in any part of the Land for the purpose of the supply of
electricity gas water or sewerage drainage or public telecommunication
services
8.1.2 the Owner and the Mortgagee (or any person deriving an interest in the Land
from such Party) after they have disposed of their interest in the Land (or in
the event of a disposal of part in relation to the part disposed of) but not so as
to release the Owner from any antecedent breach non-performance or non-
observance of their obligations or other provisions of this Deed arising prior
to parting with such interest
8.1.3 individual owners occupiers or tenants and their mortgagees of individual
Dwellings and their successors in title and their mortgagees except for
8.1.3.1 clause 5. 2 and
[8.1.3.1] any restriction on Occupation of the Open Market Dwellings and
[8.1.3.2] the provisions of Schedule 5
8.1.4
9. DETERMINATION OF THE PLANNING PERMISSION
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SUBJECT TO FURTHER INSTRUCTIONS9.1 Save for Clause 5.3 this Deed shall cease to have effect (insofar only as it has not
already been complied with) if the Planning Permission shall be quashed revoked or
otherwise withdrawn or expires prior to Commencement of Development without the
consent of the Owner
9.2 Nothing in this Deed shall prohibit or limit the right to develop any part of the Land in
accordance with a planning permission (other than the Planning Permission or
modification variation or amendment thereof) granted after the date of this Deed
9.3 If the Borough Council agrees following an application under section 73 of the 1990
Act to vary or release any condition contained in the Planning Permission or if a
condition is varied or released following an appeal under section 78 of the 1990 Act
the covenants or provisions of this Deed shall be deemed to bind the varied
permission and apply in equal terms to the new planning permission UNLESS the
Borough Council in determining the application for the new planning permission (or
the Secretary of State determining the section 78 appeal in relation to that
application) indicates that consequential amendments are required to this Deed to
reflect the impact of the section 73 application in which circumstances a separate
deed under section 106 or s.106A of the 1990 Act (as the case may be) will be
required to secure relevant planning obligations or other planning benefits relating to
the new planning permission BUT nothing in this deed shall in any way fetter the
Council’s discretion in relation to the section 73 application or the determination
thereof
9.4
10. DISPUTES AND EXPERT DETERMINATION
10.1 Without prejudice to the rights of the Borough Council to take immediate alternative
action any dispute arising under this Deed shall be referred at the instance of any
Party for determination by a single expert whose decision shall (save in the case of
manifest error or fraud) be final and binding on the parties
10.2 The following provisions and terms of appointment shall apply to such disputes
10.2.1 if the dispute relates to
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SUBJECT TO FURTHER INSTRUCTIONS10.2.1.1 transport or highway works engineering demolition or
construction works a chartered civil engineer being a member
of the Institution of Civil Engineers (having not less than 15
years’ relevant experience in the public or private sector)
agreed by the parties to the dispute but in default of agreement
appointed at the request of any of the parties by or on behalf of
the President from time to time of the Institution of Civil
Engineers
10.2.1.2 any building within the Development or any similar matter a
chartered surveyor (having not less than 15 years’ relevant
experience) agreed by the parties to the dispute but in default
of agreement appointed at the request of either party by or on
behalf of the President from time to time of the Royal Institution
of Chartered Surveyors
10.2.1.3 financial matters or matters of accounting usually and properly
within the knowledge of a chartered accountant a chartered
accountant (having not less than 15 years’ relevant experience)
agreed by the parties to the dispute but in default of agreement
appointed at the request of either party by or on behalf of the
President from time to time of the Royal Institute of Chartered
Accountants in England and Wales
10.2.1.4 any legal requirement or interpretation or other matter
regarding this Deed the same shall be referred to Counsel of at
least 15 years’ experience in such matters who shall be
appointed in default of agreement between the Owner and the
Borough Council by the President of the Bar Council for
England and Wales or his deputy
in all other cases the expert shall be an independent and suitable person
holding appropriate professional qualifications with least 15 years’ post
qualification experience in the subject matter of the dispute
10.2.2
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SUBJECT TO FURTHER INSTRUCTIONS[10.2.3] The expert shall be agreed between the parties or in the absence of such
agreement appointed by the President (or equivalent person) for the time
being of the professional body chiefly relevant in England with such
matters as may be in dispute and in the absence of agreement as to whom
to appoint as the expert or as to the appropriate professional body within
10 Working Days after a written request by one party to the other to agree
to the appointment of an expert then the question of the appropriate
qualifications or professional body shall be referred to a solicitor to be
appointed by the President for the time being of the Law Society of
England and Wales on the application of either party and such solicitor
shall act as an expert and his decision as to the expert or as to the
appropriate professional body shall be final and binding on the parties to
the dispute or difference and his costs shall be payable by the parties to
the dispute in such proportion as he shall determine and failing such
determination shall be borne in equal shares
10.2.3[10.2.4] The expert shall be required to give notice of his appointment to each
of the parties to the dispute
10.2.4[10.2.5] The persons calling for the determination shall make written
submissions together with any supporting material to the expert and the
other parties within 10 Working Days of the date of notification of the
expert’s appointment pursuant to Clause 10.2.4
10.2.5[10.2.6] The other parties shall have 10 Working Days from the receipt of such
written submission to make counter written submissions together with any
supporting material
10.2.6[10.2.7] If exceptionally a party feels that further submission should be taken
into account the expert may accept such late submission provided before
deciding whether exceptionally to accept further submissions the
applying party shall provide and the expert will require
10.2.7.1 an explanation as to why it was not submitted as part of the
originating submission or counter submission and
10.2.7.2 an explanation of how and why the material is relevant and
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SUBJECT TO FURTHER INSTRUCTIONS10.2.7.3 the opposing party’s views on whether it should be accepted
AND the expert will refuse to accept further submissions unless fully
satisfied that
10.2.7.4 it is not covered in the submissions already received and
10.2.7.5 it is directly relevant and necessary for his decision and
10.2.7.6 it would not have been possible for the party to have provided
the submission with the originating submission or counter
submission (as the case may be)
AND the expert will notify the parties of his decision within 5 Working Days
of receipt of the late submission
AND where such further submission is permitted
10.2.7.7 the other parties shall be entitled to make written submission
within 10 Working Days of the date of notification of the expert’s
decision to allow the late submission
10.2.7.8 the expert may take this into account when making any cost
order
10.2.8 Allowing for the nature and complexity of the dispute if the expert is of
the opinion that he is likely to need to test the submissions by questioning
or to clarify matters arising out of the submissions the expert may call for
the dispute to be heard in an informal round table discussion led by the
expert who shall identify the issues for discussion based on the
submissions received
10.2.9 Unless otherwise agreed between the parties to the dispute the
expert shall disregard any representations made out of time
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SUBJECT TO FURTHER INSTRUCTIONS10.2.10 Any expert howsoever appointed shall be subject to the express
requirement that a decision be reached and communicated to the relevant
parties within the minimum practicable timescale allowing for the nature
and complexity of the dispute and in any event not more than 20 Working
Days
10.2.10.1 after the conclusion of any hearing that takes place or
10.2.10.2 after the expert has received the representations under Clause
10.2.6 or 10.2.7.7 (as the case may be) or if none the expiry of
the period referred to in Clause 10.2.6 or 10.2.7.7 (as the case
may be)
10.2.11 The expert’s decision shall be in writing and give reasons for his decision
10.2.12 The expert’s fees shall be payable by the parties to the dispute in such
proportion as the expert shall determine and failing such determination
shall be borne by the parties in equal shares
11. NOTICES
11.1 Without prejudice to any other notice required to be given pursuant to the terms of this
Deed the Owner covenants that
11.1.1 it shall provide the Borough Council with no less than 20 Working
Days prior notice of the intended date of carrying out any Preparatory
Operation and the Owner shall not carry out any Preparatory Operations
unless and until this notice has been provided to the Borough Council
1.1.1 it shall subsequently notify the Borough Council promptly and in any
event within 5 Working Days of the actual date on which the first Preparatory
Operation was carried out
11.1.2 it shall provide the Borough Council with no less than 20 Working Days prior
notice of the intended date of Commencement of Development of each
Phase and the Owner shall not Commence Development of any Phase
unless and until this notice has been provided to the Borough Council and
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SUBJECT TO FURTHER INSTRUCTIONS11.1.3 it shall notify the Borough Council promptly and in any event within 5 Working
Days of the actual date of Commencement of Development of each Phase
and
11.1.4 it shall provide the Borough Council with no less than 20 Working Days prior
notice of the intended date of Occupation of the Development and the Owner
shall not Occupy the Development unless and until this notice has been
provided to the Borough Council
11.1.5 it shall notify the Borough Council promptly and in any event within 5 Working
Days of the actual date of Occupation of the Development
11.1.6 it shall provide the Borough Council with the final Certificate of Practical
Completion of the Development as a whole
11.2 Any notice approval consent certificate direction authority agreement action
expression of satisfaction or other similar communication to be given under this
Deed must be in writing and shall be delivered by hand or sent by pre-paid first class
post or other next Working Day delivery service marked for the attention of the
person and copied to the person(s) (as the case may be) identified below SAVE THAT any of the Parties may by written notice notify the other Parties of an
alternative address (which address must be based in England or Wales) for the
service of subsequent notices or other written communications in which case those
details shall be substituted for the details provided below
The Borough Council Maidstone Borough Council
Address The Head of Planning & DevelopmentMaidstone Borough CouncilMaidstone HouseKing StreetMaidstoneKentME15 6JQ
Reference 14/506738/OUT – Land at Barty Farm, Roundwell, Bearsted
With a copy to The Section 106 Monitoring Officer
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SUBJECT TO FURTHER INSTRUCTIONSWhere required The Housing Delivery Manager
Where required The Greenspaces manager (LEMP
The Owner LOUISE BARR
Address Orchard HouseEast Lenham FarmLenhamMaidstoneKentME17 2DP
The Mortgagee National Westminster Bank PLC
Address 135 BISHOPSGATELONDONEC2M 3UR
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SUBJECT TO FURTHER INSTRUCTIONS
11.3 Any notice approval consent certificate direction authority agreement action
expression of satisfaction or other communication given in pursuant to this Deed shall
conclusively be deemed to have been received
11.3.1 if delivered by hand on signature of a delivery receipt provided that if
delivery occurs before 09h00 on a Working Day the notice will be deemed
to have been received at 09h00 on that day and if delivery occurs after
17h00 on a Working Day or on a day which is not a Working Day the
notice will be deemed to have been received at 09h00 on the next Working
Day or
11.3.2 if sent by pre-paid first class post or other next Working Day delivery
service within the United Kingdom at 09h00 on the day 2 Working Days
after the date of posting
11.4 Any notice or request by the Owner for approval consent certificate direction
authority agreement action expression of satisfaction or other similar communication
required pursuant to this Deed shall cite the Clause or Paragraph of the relevant
Schedule to this Deed to which such notice or request relates
11.5 This Clause does not apply to the service of any proceedings or other documents in
any legal action or where applicable any arbitration or other method of dispute
resolution
12. LOCAL LAND CHARGE
12.1 This Deed is a local land charge and shall be registered as such
12.2 Where in the opinion of the Owner any of the provisions of this Deed have been
satisfied the Owner shall be entitled to apply to the Borough Council for confirmation
to that effect and (subject to the payment of the Borough Council’s reasonable costs
and charges in connection therewith) upon the Borough Council being satisfied that
the relevant obligation or covenant (as the case may be) has been satisfied the
Borough Council shall as soon as is reasonably practicable issue a written
confirmation to such effect to the Owner
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SUBJECT TO FURTHER INSTRUCTIONS12.3 The Borough Council shall upon the written request of the Owner (and subject to the
payment of the Borough Council’s reasonable costs and charges in connection
therewith) at any time after all the obligations of the Owner under this Deed have
been performed or otherwise discharged and the Borough Council being satisfied
that this Deed no longer serves a useful purpose as soon as is reasonably
practicable cancel all entries made in the local land charges register in respect of this
Deed
13. SUCCESSORS IN TITLE
13.1 The Owner enters into the obligations set out in this Deed for itself and its successors
in title for the benefit of the Borough Council to the intent that the obligations in this
Deed shall be enforceable not only against the Owner but also against the
successors in title of the Owner and any person claiming through or under the Owner
an interest or estate in the Land or any part thereof
14. POWERS OF THE BOROUGH COUNCIL
14.1 Nothing contained or implied in this Deed shall fetter prejudice restrict or affect the
rights discretions powers duties responsibilities and obligations of the Borough
Council under all and any legislative instrument including statutes by-laws statutory
instruments orders and regulations for the time being in force in the exercise of its
function as a local authority
15. SEVERABILITY
15.1 If any provision (or part thereof) of this Deed shall be held to be invalid illegal or
unenforceable the validity legality and enforceability of the remaining provisions (or
such part of the provisions as is still enforceable) shall not in any way be deemed
thereby to be affected impaired or called into question
16. RIGHTS OF THIRD PARTIES
16.1 The Parties intend that no terms of this Deed may be enforceable pursuant to the
Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party to this
Deed save for the successors in title to the Parties and in the case of the Borough
Council the successor to its statutory functions
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SUBJECT TO FURTHER INSTRUCTIONS17. CHANGE OF OWNERSHIP AND NEW INTEREST
17.1 The Owner warrants that no person other than the persons identified in Schedule 1 has any legal or equitable interest in the Land
17.2 The Owner shall give the Borough Council immediate written notice of any
conveyance transfer lease assignment mortgage or other disposition entered into
in respect of all or any part of the Land or change in ownership of any of its interests
in the Land occurring before all the obligations under this Deed have been
discharged such notice to give
17.2.1 the name and address of the person to whom the disposition was made (and in the case of a company the full name and registered office address) and
17.2.2 the nature and extent of the interest disposed of by reference to a plan
18. WAIVER
18.1 No waiver (whether expressed or implied) by the Borough Council of any breach or
default or delay in performing or observing any of the covenants terms or conditions of
this Deed shall constitute a continuing waiver and no such waiver shall prevent the
Borough Council from enforcing any of the relevant terms or conditions or acting upon
any subsequent breach or default and no single or partial exercise of such right or
remedy shall prevent or restrict the further exercise of that or any other right or
remedy
19. INDEXATION
19.1All the financial contributions payable to the Borough Council pursuant to this Deed shall
be Index Linked
19.2The Borough Council Contributions payable pursuant to this Deed shall be increased in
the same proportion as the percentage increase in the All in Tender Price Index between the
quarterly index figure immediately preceding the date of this Deed and the quarterly index
figure for the quarter immediately preceding the date of actual payment
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SUBJECT TO FURTHER INSTRUCTIONS19.3The County Council Contributions payable pursuant to this Deed shall be increased in
the same proportion as the percentage increase in the General Building Cost Index between
the monthly index figure immediately preceding the date of this Deed and the monthly index
figure for the month of the date of actual payment
20. INTEREST
20.1 If any sum or amount due under this Deed has not been paid to the Borough Council by
the date it is due the Owner shall pay the Borough Council interest on that amount at the
Interest Rate (Borough Council) with such interest accruing on a daily basis for the period from the date payment is due to and including the date of payment
20.2 If any County County Council Contribution due to be paid to the Borough Council under
this Deed has not been paid to the Borough Council by the date it is due the Owner shall pay
the Borough Council interest on that amount at the Interest Rate (County Council) with such
interest accruing on a daily basis for the period from the date payment is due to and
including the date of payment
21. VAT
21.1 Each amount stated to be payable by one Party to the other under or pursuant to this
Deed is exclusive of VAT
21.2 If any VAT is at any time chargeable on any supply made by any Party under or
pursuant to this Deed the Party making the payment shall pay the other an amount equal to
that VAT as additional consideration subject to receipt of a valid VAT invoice
22. AGREEMENTS AND DECLARATIONS
22.1The Parties agree that
22.1.1 nothing in this Deed constitutes a planning permission or an obligation to
grant planning permission and
22.1.2 nothing in this Deed grants planning permission or any other approval
consent or permission required from the Borough Council in the exercise of any
other statutory function
23. JURISDICTION
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SUBJECT TO FURTHER INSTRUCTIONS23.1This Deed and any dispute or claim arising out of or in connection with it or its subject
matter or formation (including non-contractual disputes or claims) shall be governed by and
construed in accordance with the law of England
23.2It is hereby agreed that the Parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales
24. DELIVERY
24.1 This Deed is delivered on the date written at the start and the provisions of this Deed
(other than this Clause and Clause 5.4 which shall be of immediate effect) shall be of
no effect until this Deed has been dated
IN WITNESS whereof the Parties hereto have executed this Deed on the day and year
first before written
The COMMON SEAL of
MAIDSTONE BOROUGH COUNCIL was affixed to this Deed
in the presence of
)
)
)
)
Authorised Signatory
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Signed as a DEED by LOUISE BARR in the presence of
))
Signature
Signature of witness
Name (IN BLOCK CAPITALS)
Address
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SUBJECT TO FURTHER INSTRUCTIONS
Signed as a DEED by
For and on behalf of BARTY HOUSE NURSING HOMES LIMITEDin the presence of
))
Signature
Signature of witness
Name (IN BLOCK CAPITALS)
Address
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SUBJECT TO FURTHER INSTRUCTIONS
SCHEDULE 1: THE LAND
The land against which this Deed is enforceable comprises all that land and premises situate
at and known as Land at Barty Farm, Roundwell, Bearsted, Maidstone as shown on the
Plan and which is more fully described in the title held at the Land Registry of which
1. Owner 1 is the registered proprietor with freehold title absolute of all the freehold land
and premises situate at “Land lying to the north east of Roundwell, Bearsted, Maidstone”
and known as Land at Barty Farm, Roundwell, Bearsted and the same is shown for the
purposes of identification only outlined red on the Plan and is registered at the Land
Registry under title number TT4214, K359298 and TT26276
2. Owner 2 is the registered proprietor with freehold absolute of all the freehold land situate
at Barty House Nursing Homes Roundwell Bearsted and shown for the purposes of
identification only outlined red on the Plan and is registered at the Land Registry under
title number K822368
3. The Mortgagee is the proprietor of a registered charge dated 22nd June 2016 on title
number TT4214
SCHEDULE 2: PHASING
1. Interpretation of this Schedule
1.1. Unless the context otherwise requires where in this Schedule the following defined
terms and expressions are used they shall have the following respective meanings
and (where applicable) be supplemented by Clause 1.1 and Paragraph 1.1 of the
other relevant Schedules
“Phase” means a phase of the Development as shown on the
Phasing Plan
“Phasing Plan” means a programme provided by the Owner to the
Borough Council identifying the details and
mechanisms for how the Development will be phased
and/or sequenced which programme shall include
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a) a site plan showing the proposed final Development
and overall phasing/sequencing of the Development
b) identify the location of the Affordable Dwellings in
each Phase ensuring that each Phase has 30%
Affordable Housing appropriately distributed so as
not to be segregated from the Open Market
Dwellings and ensure inclusive and mixed
communities throughout the Phase of which 60% of
the Affordable Dwellings within each Phase shall be
Affordable Rented Units and 40% of the Affordable
Dwellings within each Phase shall be Shared
Ownership Units
c) identify the Affordable Dwelling
i. tenure and tenure split
ii. the type of Dwellings being provided as
Affordable Housing
iii. the size of each Affordable Dwelling Housing
iv. arrangement for managing the Affordable
Housing Units
d) identify which of the Affordable Dwellings is to
comprise fully wheelchair accessible Dwellings
pursuant to Schedule 4 (Affordable Housing)
e) a written statement including a plan describing each
phase of the Development including the uses and
identify the estimated duration of the build out
period of each Phase
f) set out details as to phasing/sequencing of the
Strategic LEMP and Phase Specific LEMP
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AND such other requirements as the Borough Council
may require
2. Phasing Plan
2.1. The Owner covenants that it shall
2.1.1. prior to Commencement of Development submit to the Borough
Council (acting reasonably) for its approval the Phasing Plan
2.1.2. not Commence Development unless and until the Phasing Plan has
been approved by the Borough Council (in consultation with the Housing
and Enabling Manager)
2.1.3. following Commencement of Development carry out the Development
strictly in accordance with the approved Phasing Plan
2.2. Following approval of the Phasing Plan
2.2.1. the Owner shall be entitled to submit a new or revised Phasing Plan to
the Borough Council for approval by the Borough Council (in consultation
with the Housing and Enabling Manager) (acting reasonably) (and
following such approval the Phasing Plan shall take effect as replaced or
revised)
2.2.2. the Owner shall pay the Borough Council’s reasonable costs and
expenses (including any professional fees that may be incurred and any
abortive costs and expenses in the event that the new or revised Phasing
Plan is withdrawn by the Owner prior to approval by the Borough Council)
associated with assessing and approving the new or revised Phasing Plan
submitted pursuant to this Sub-Paragraph within 10 Working Days of the
date of written notification for payment by the Borough Council
2.3. No proposed new or revised Phasing Plan submitted by the Owner to the Borough
Council for approval under this Paragraph 2 shall come into force unless and until it
has been approved by the Borough Council
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SUBJECT TO FURTHER INSTRUCTIONS
SCHEDULE 3: FINANCIAL CONTRIBUTIONS TO THE BOROUGH COUNCIL
1. Interpretation of this Schedule
1.1. Unless the context otherwise requires where in this Schedule the following defined
terms and expressions are used they shall have the following respective meanings
and (where applicable) be supplemented by Clause 1.1 and Paragraph 1.1 of the
other relevant Schedules
“NHS Healthcare Contribution”
mMeans the sum of £808.20 (eight hundred and eight
pounds and twenty pence) per Open Market Dwelling
where the total contribution in each Phase shall be
calculated in accordance with the following formula
OMD x £808.20 = £NHS Index Linked
WHERE
OMD is the number of Open Market Dwellings to be
provided pursuant to the Reserved Matters Approval in
that Phase
£NHS Index Linked is the NHS Healthcare
Contribution (Index Linked) payable for the Phase
“Applicable Flat” means those Dwellings comprising Flats but excluding
those Flats (if any) of less than 56sqm GIA and
excluding sheltered accommodation
“Applicable House” means all Dwellings but excluding those Dwellings (if
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any) of less than 56sqm GIA and excluding sheltered
accommodation
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SUBJECT TO FURTHER INSTRUCTIONS
Community Facilities Contribution
Means a contribution in the sum of £53.88 (fifty-three
pounds and eighty-eight pence) per Dwellings where
the total contribution in each Phase is calculated in
accordance with the following formula
(D x £53.88) = £CF Index Linked
WHERE
D is the number of Dwellings to be provided pursuant
to the Reserved Matters Approval in each Phase
£CF Index Linked is the Community Facilities
Contribution (Index Linked) payable for the Phase
Community Facilities Means enhancements to the Dorothy Goodman Centre
(Age UK) at Madginford to ensure full DDA access
Community Learning Contribution
means a contribution in the sum of £31.75 (thirty-one
pounds and seventy-five pence) per Dwellings where
the total contribution in each Phase is calculated in
accordance with the following formula
(D x £31.75) = £CL Index Linked
WHERE
D is the number of Dwellings to provided pursuant to
the Reserved Matters Approval in each Phase
£CL Index Linked is the Community Learning
Contribution (Index Linked) payable for the Phase
Community Learning Facilities
Means the supply of new Information Technology
equipment to St Faiths Adult Education Centre in
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Maidstone
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SUBJECT TO FURTHER INSTRUCTIONS
“GIA” means Gross Internal Area as measured in accordance
with the ‘International Property Measurement
Standards: Residential Buildings (IPMS 2 – Residential
(Internal))’ (September 2016) or any amendment
update or variation thereto or any subsequent
replacement thereof or such other standard as may be
approved by the Royal Institution of Chartered
Surveyors (RICS)
“Libraries Contribution ” means a contribution in the sum of £127.09 (one
hundred and twenty-seven pounds and nine pence) per
Dwellings where the total contribution in each Phase is
calculated in accordance with the following formula
(D x £127.09) = £LIB Index Linked
WHERE
D is the number of Dwellings to provided pursuant to
the Reserved Matters Approval in each Phase
£LIB Index Linked is the Library Contribution (Index
Linked) payable for the Phase
Libraries Facilities Means the supply of additional bookstock and moveable
shelving at Bearsted Library required due to the
additional demands placed on the service as a direct
result of the Development
NHS Healthcare Facilities
Means the enhancement of facilities at Bearsted
Medical Practice to provide for the additional services
required as a result of the Development
“NHS Property Services”NHS West Kent CCG
means NHS Property Services Limited (Company
Registration No 07888110) or its successor in title or
successor to its functions on behalf of NHS England
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(Kent and Medway Area Team) means NHS West Kent
CCG (Company Registration No XXXXXX)
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Primary Education Contribution
means the sum of
a) £2360.96 per Applicable House and
b) £ 831 per Applicable Flat
(as the case may be) where the total contribution in
each Phase calculated in accordance with the following
formula
(AH x £●) + ( AF x £●) = £PEC Index Linked
WHERE
AH is the number of Applicable Houses to be provided
in the Phase
AF is the number of Applicable Flats to be provided in
the Phase
£PEC Index Linked is the Primary Education
Contribution (Index Linked) payable for the Phase
Primary Education Facilities
Means the expansion of South Borough Primary
Public Rights of Way Contribution
means the sum of £12,330.30 Index Linked
Public Rights of Way Facilities
Means the upgrading of PRoW KH127 to Church Lane
“Railway Service Operator”
Means Southeastern, operating as a trading name for
London and South Eastern Railway Limited (Company
Registration No 04860660) or its successor in title or
successor to its functions
“Railway Station Improvement
means the sum of £15,000.00 (fifteen thousand
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SUBJECT TO FURTHER INSTRUCTIONS
Contribution” pounds)
Railway Station Improvements
Means improvements at Bearsted Railway Station to be
utilised to promote sustainable access
Secondary Education Contribution
means the sum of
c) £3,359.80 per Applicable House and
d) £589.95 per Applicable Flat
(as the case may be) where the total contribution in
each Phase is calculated in accordance with the
following formula
(AH x £●) + ( AF x £●) = £SEC Index Linked
WHERE
AH is the number of Applicable Houses to be provided
in the Phase
AF is the number of Applicable Flats to be provided in
the Phase
£SEC Index Linked is the Secondary Education
Contribution (Index Linked) payable for the Phase
Secondary Education Facilities
means for the expansion of Maplesden Noakes
Secondary School
Youth Services Contribution
means the sum of £31.78 (thirty-one pounds and
seventy-eight pence) per Dwellings where the total
contribution in each Phase is calculated in accordance
with the following formula
(D x £31.78) = £YS Index Linked
WHERE
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D is the number of Dwellings to provided in each Phase
£YS Index Linked is the Youth Contribution (Index
Linked) payable for the Phase
AND totaling £3178 Index Linked for the whole
Development
Youth Services Facilities Means the provision of new furniture for InFoZoNe
Youth Centre
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SUBJECT TO FURTHER INSTRUCTIONS2. Community Facilities Contribution
2.1. The Owner covenants that it shall pay to the Borough Council the Community
Facilities Contribution for each Phase before Occupation of 50% of the Dwellings in
that Phase
2.2. The Owner covenants that it shall not Occupy more than 50% of the Dwellings in
each Phase unless and until
2.2.1. the Community Facilities Contribution in respect of that Phase has been paid
to the Borough Council and
2.2.2. the Owner has notified the Borough Council of this payment
2.3. The Borough Council shall not transfer the Community Facilities Contribution (or any
part thereof) (together with any interest accrued thereon) to the County Council
unless the Borough Council is satisfied that the County Council will spend the
contribution on the Community Facilities
2.4. If the Borough Council are of the view that the Community Facilities Contribution will
not be spent in accordance with Paragraph 2.3 the Borough Council shall repay
such of the Community Learning Contribution as the Borough Council is holding to
the person who paid the contribution with accrued interest (if any) but less any tax
that may be payable thereon and the Borough Council’s administrative expenses
3. Community Learning Contribution
3.1. The Owner covenants that it shall pay to the Borough Council the Community
Learning Contribution for each Phase before Occupation of 50% of the Dwellings in
that Phase
3.2. The Owner covenants that it shall not Occupy more than 50% of the Dwellings in
each Phase unless and until
3.2.1. the Community Learning Contribution in respect of that Phase has been paid
to the Borough Council and
3.2.2. the Owner has notified the Borough Council of this payment
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SUBJECT TO FURTHER INSTRUCTIONS3.3. The Borough Council shall not transfer the Community Learning Contribution (or any
part thereof) (together with any interest accrued thereon) to the County Council
unless the Borough Council is satisfied that the County Council will spend the
contribution on the Community Learning Facilities
3.4. If the Borough Council are of the view that the Community Learning Contribution will
not be spent in accordance with Paragraph 2.3 the Borough Council shall repay
such of the Community Learning Contribution as the Borough Council is holding to
the person who paid the contribution with accrued interest (if any) but less any tax
that may be payable thereon and the Borough Council’s administrative expenses
4. Libraries Contribution
4.1. The Owner covenants that it shall pay to the Borough Council the Libraries
Contribution for each Phase before Occupation of 50% of the Dwellings in that Phase
4.2. The Owner covenants that it shall not Occupy more than 50% of the Dwellings in
each Phase unless and until
4.2.1. the Libraries Contribution for that Phase has been paid to the Borough Council and
4.2.2. the Owner has notified the Borough Council of this payment
4.3. The Borough Council shall not transfer the Libraries Contribution (or any part thereof)
(together with any interest accrued thereon) to the County Council unless the
Borough Council is satisfied that the County Council will spend the contribution on the
Library Facilities
4.4. If the Borough Council are of the view that the Libraries Contribution will not be
spent in accordance with Paragraph 4.3 the Borough Council shall repay such of the
Libraries Contribution as the Borough Council is holding to the person who paid the
contribution with accrued interest (if any) but less any tax that may be payable
thereon and the Borough Council’s administrative expenses
5. NHS Healthcare Contribution
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SUBJECT TO FURTHER INSTRUCTIONS5.1. The Owner covenants that it shall pay to the Borough Council the NHS Healthcare
Contribution for that Phase before Occupation of 50% of the Dwellings in each Phase
5.2. The Owner covenants that it shall not Occupy 50% or more of the Dwellings in each
Phase unless and until the NHS Healthcare Contribution has been paid to the
Borough Council in respect of such Phase
[5.3.] The Borough Council shall not transfer the NHS Contribution (or any part thereof)
(together with any interest accrued thereon) to [ NHS Property Services●] unless the
Borough Council is satisfied that [ NHS Property Services● ]will spend the
contribution on the NHS Healthcare Facilities
5.3.[5.4.] If the Borough Council are of the view that the NHS Healthcare Contribution will
not be spent in accordance with Paragraph 5.3 the Borough Council shall repay
such of the NHS Healthcare Contribution as the Borough Council is holding to the
person who paid the contribution with accrued interest (if any) but less any tax that
may be payable thereon and the Borough Council’s administrative expenses
6. Primary Education Contribution
6.1. The Owner covenants that it shall pay to the Borough Council the Primary Education
Contribution for each Phase before Occupation of 50% of the Dwellings in that
Phase
6.2. The Owner covenants that it shall not Occupy 50% or more of the Dwellings in each
Phase unless and until
6.2.1. the Primary Education Contribution for that Phase has been paid to the
Borough Council
6.2.2. the Owner has notified the Borough Council of this payment
6.3. The Borough Council shall not transfer the Primary Education Contribution (or any
part thereof) (together with any interest accrued thereon) to the County Council
unless the Borough Council is satisfied that the County Council will spend the
contribution on the Primary Education Facilities
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SUBJECT TO FURTHER INSTRUCTIONS6.4. If the Borough Council are of the view that the Primary Education Contribution will
not be spent in accordance with Paragraph 7.3 the Borough Council shall repay
such of the Primary Education Contribution as the Borough Council is holding to the
person who paid the contribution with accrued interest (if any) but less any tax that
may be payable thereon and the Borough Council’s administrative expenses
7. Public Rights of Way Contribution
7.1. The Owner covenants that it shall pay to the Borough Council the Public Rights of
Way Contribution before first Occupation
7.2. The Owner covenants that it shall not Occupy any Dwelling unless and until
7.2.1. the Public Rights of Way Contribution has been paid to the Borough Council
and
7.2.2. the Owner has notified the Borough Council of this payment
7.3. The Borough Council shall not transfer the Public Rights of Way Contribution (or any
part thereof) (together with any interest accrued thereon) to the County Council
unless the Borough Council is satisfied that the County Council will spend the
contribution on the Primary Education Facilities
7.4. If the Borough Council are of the view that the Public Rights of Way Contribution will
not be spent in accordance with Paragraph 7.3 the Borough Council shall repay
such of the Primary Education Contribution as the Borough Council is holding to the
person who paid the contribution with accrued interest (if any) but less any tax that
may be payable thereon and the Borough Council’s administrative expenses
8. Railway Station Improvement Contribution
8.1. The Owner covenants that it shall pay to the Borough Council the Railway Station
Improvement Contribution for that Phase before Occupation of 50% of the Dwellings
in each Phase
8.2. The Owner covenants that it shall not Occupy 50% or more of the Dwellings in each
Phase unless and until the Railway Station Improvement Contribution has been paid
to the Borough Council in respect of such Phase
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SUBJECT TO FURTHER INSTRUCTIONS8.3. The Borough Council shall not transfer the Railway Station Improvement Contribution
(or any part thereof) (together with any interest accrued thereon) to the Railway
Service Operator unless the Borough Council is satisfied that the Railway Service
Operator will spend the contribution on the Railway Station Improvements
8.4. If the Borough Council are of the view that the Railway Station Improvement
Contribution will not be spent in accordance with Paragraph 8.3 the Borough Council
shall repay such of the Railway Station Improvement Contribution as the Borough Council is holding to the person who paid the contribution with accrued interest (if
any) but less any tax that may be payable thereon and the Borough Council’s
administrative expenses
9. Secondary Education Contribution
9.1. The Owner covenants that it shall pay to the Borough Council the Secondary
Education Contribution for each Phase before Occupation of 50% of the Dwellings in
that Phase
9.2. The Owner covenants that it shall not Occupy 50% or more of the Dwellings in each
Phase unless and until
9.2.1. the Secondary Education Contribution for that Phase has been paid to the
Borough Council
9.2.2. the Owner has notified the Borough Council of this payment
9.3. The Borough Council shall not transfer the Secondary Education Contribution (or any
part thereof) (together with any interest accrued thereon) to the County Council
unless the Borough Council is satisfied that the County Council will spend the
contribution on the Secondary Education Facilities
9.4. If the Borough Council are of the view that the Secondary Education Contribution
will not be spent in accordance with Paragraph 8.3 the Borough Council shall repay
such of the Secondary Education Contribution as the Borough Council is holding to
the person who paid the contribution with accrued interest (if any) but less any tax
that may be payable thereon and the Borough Council’s administrative expenses
10. Youth Services Contribution
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SUBJECT TO FURTHER INSTRUCTIONS10.1. The Owner covenants that it shall pay to the Borough Council the Youth Services
Contribution for that Phase before Occupation of 50% of the Dwellings in each Phase
10.2. The Owner covenants that it shall not Occupy more than 50% of the Dwellings in
each Phase unless and until
10.2.1. the Youth Services Contribution has been paid to the Borough Council and
10.2.2. the Owner has notified the Borough Council of this payment
10.3. The Borough Council shall not transfer the Youth Services Contribution (or any part
thereof) (together with any interest accrued thereon) to the County Council unless the
Borough Council is satisfied that the County Council will spend the contribution on the
Secondary Education Facilities
10.4. If the Borough Council are of the view that the Youth Services Contribution will not
be spent in accordance with Paragraph 8.3 the Borough Council shall repay such of
the Secondary Education Contribution as the Borough Council is holding to the
person who paid the contribution with accrued interest (if any) but less any tax that
may be payable thereon and the Borough Council’s administrative expenses
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SCHEDULE 4: AFFORDABLE HOUSING
1. Interpretation of this Schedule
1.1. Unless the context otherwise requires where in this Schedule the following defined
terms and expressions are used they shall have the following respective meanings
and (where applicable) be supplemented by Clause 1.1 and Paragraph 1.1 of the
other Schedules
“Affordable Housing" means the Affordable Dwellings to be provided within
the Development which are available to persons in
Housing Need and which are to be made permanently
available to such persons nominated by the Borough
Council
"Affordable Dwellings" means the 30% of the Dwellings (rounded up to the
nearest whole Dwelling) together with associated
vehicle and cycle parking to be provided by the Owner
on the Land of which
a) 60% shall be Affordable Rented Units (rounded up
to the nearest whole Dwelling) and
b) 40% shall be Shared Ownership Units (rounded up
to the nearest whole Dwelling)
and which are to be transferred to a Registered
Provider for housing persons in Housing Need in
accordance with the provisions of this Schedule
"Affordable Rented Units"
means the Affordable Dwellings that will be let to
persons in Housing Need at an Affordable Rent in
accordance with the HCA’s Tenancy Standard (April
2012) as may be amended updated or replaced from
time to time
“Affordable Rent” means chargeable rent that is subject to the HCA’s
Rent Standard (April 2015) as expanded on by the
Rent Standard Guidance (April 2015) as such
document and/or associated guidance may be
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SUBJECT TO FURTHER INSTRUCTIONS
amended updated or replaced from time to time and is
required is required to be offered to eligible
householders in Housing Need at an open market
rental level which does not exceed 80% of gross local
market rent (inclusive of service charges) for an
equivalent property of that size and location
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“Allocations Scheme” means the Borough Council’s published scheme of
allocations presently contained in the Borough
Council’s document entitled “Allocation Scheme”
(version 1.7 (dated 31 August 2016)) or any
amendment update or variation thereto or any
subsequent replacement thereof
“Deed of Nomination Rights"
means the Deed agreed between the Borough Council
and the Registered Provider in relation to the
nomination rights in respect of the Affordable Dwellings
in the form annexed as Appendix 3 or such similar
form as the Owner or Registered Provider (as the case
may be) and the Borough Council shall agree
"HCA" means the body known as the Homes and
Communities Agency (or any successor body to its
functions) within the meaning of Part I of the Housing
and Regeneration Act 2008 that funds new affordable
homes and regulates Registered Providers in England
“HCA’s East and South East Operating Area”
consists of the counties of Buckinghamshire
Cambridgeshire East Sussex Essex Hertfordshire
Kent Norfolk Suffolk Surrey and West Sussex and
the unitary authorities of Brighton and Hove Medway
Towns Peterborough Southend-on-Sea and Thurrock
but shall not include Greater London
“Help to Buy Agent” means an agent commissioned by the HCA to provide
a one stop shop service to qualifying applicants
enquiring about and applying for the low cost home
ownership schemes within Maidstone Borough Council
including shared ownership schemes
“Housing and Enabling Manager”
means the Borough Council’s Housing and Enabling
Manager or such other officer as may be lawfully
designated by the Borough Council for the purposes of
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discharging his duties and functions
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“Housing Need” means
a) in relation to the Affordable Rented Units the
requirement by a person for social housing
allocation in accordance with the Borough
Council’s Allocations Scheme and
b) in relation to the Shared Ownership Units the
requirement by a person to be registered with the
Help to Buy Agent to be granted a Shared
Ownership Lease because the persons income is
insufficient to enable them rent or buy housing
available locally on the open market determined
with regard to local incomes and local house prices
“Part M4(2)” means Part M4(2) Category 2: Accessible and
adaptable dwellings of Schedule 1 to the Building
Regulations 2010 as supported by “Approved
Document M: Access to and use of buildings, volume 1:
Dwellings” as such approved document may be
amended updated or replaced from time to time or
such other equivalent standard as approved by the
Council
“Part M4(3)” means Part M4(3) Category 2: Wheelchair user
dwellings of Schedule 1 to the Building Regulations
2010 as supported by “Approved Document M: Access
to and use of buildings, volume 1: Dwellings” as such
approved document may be amended updated or
replaced from time to time or such other equivalent
standard as approved by the Council
“Neighbouring Councils” means Ashford Borough Council and Tonbridge and
Malling Borough Council who share the same housing
market within the Borough Council’s Strategic Housing
Market Assessment
"Registered Provider" means any person body or entity which is registered
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with the HCA (or such other similar provider which is
not registered with the HCA) as a provider of social
housing in accordance with section 80(2) and chapter
3 of the Housing and Regeneration Act 2008 (or any
other body defined by subsequent legislation as having
a similar role)
“Shared Ownership Lease”
means a lease which accords with the HCA’s
model form of lease issued from time to time
"Shared Ownership Units”
means the Affordable Dwellings to be occupied by
persons who are in Housing Need whereby a person
granted a Shared Ownership Lease can purchase an
initial equity share in a Shared Ownership Unit of not
less than 25% and not more than 75% and pay rent on
the unsold equity with flexibility for such a person to
purchase further equity shares in the Shared Ownership
Unit up to 100% or such other equity sharing or
retention terms from time to time approved by the
Borough Council
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SUBJECT TO FURTHER INSTRUCTIONS2. General Provisions
2.1. The Owner covenants that it shall provide the Affordable Dwellings within the
Development in accordance with the provisions of this Schedule and Schedule 2
2.2. The Owner covenants that the Affordable Dwellings shall be built by the Owner in
accordance with Part M4(2)
[2.3.] The Owner covenants that ● of2 of the Affordable Dwellings shall be fully wheelchair
accessible and be built by the Owner in accordance with Part M4(3)
2.3.[2.4.] The Owner covenants that it shall provide 30% Affordable Housing within each
Phase in accordance with the Phasing Plan
2.4.[2.5.] The Owner covenants that the Affordable Dwellings in each Phase shall be
Practically Completed within 36 calendar months of the date of Commencement of that
Phase
2.5.[2.6.] Subject to Paragraph 5 of this Schedule (Exclusions) the Owner covenants that the
Affordable Dwellings shall not be Occupied or used for any other purpose other than as
Affordable Dwellings unless otherwise agreed by the Borough Council
2.6.[2.7.] The Owner covenants that
2.6.1.[2.7.1.] the Affordable Rented Units shall not be Occupied other than by persons
who are in Housing Need
2.6.2.[2.7.2.] the Shared Ownership Units shall not be Occupied other than by
persons who are in Housing Need and registered with the Help to Buy
Agent
3. Transfer of the Affordable Dwellings
[3.1.] Prior to Commencement of Development in each Phase the Owner covenants that it shall
have secured agreement for the the transfer of the Affordable Dwellings to a Registered
Provider and shall provide to the Borough Council sufficient evidence as the Borough
Council shall require to show that this Paragraph 3 has been complied with and the
Owner covenants that it shall not Commence Development unless and until the
provisions of this Paragraph have been complied with
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SUBJECT TO FURTHER INSTRUCTIONS3.1.[3.2.] The Owner covenants that no more than 50% of the Open Market Dwellings in
each Phase shall be Occupied unless and until
3.1.1.[3.2.1.] the Affordable Dwellings in that phase have been constructed on the
Land and Practically Completed in accordance with the Planning
Permission and covenants and obligations in this Schedule (a copy of the
Certificate of Practical Completion shall be provided to the Strategic
Housing and Health Manager with a copy to the Section 106 Monitoring
Officer) and
3.1.2.[3.2.2.] a freehold interest or a leasehold interest of at least 125 years on a full
repairing and insuring basis of each of the Affordable Dwellings in that phase
has been transferred or granted to the Registered Provider free from all
encumbrances (other than those on the title of the Land at the date of this
Deed) and free from all financial charges for the Affordable Dwellings
3.1.3.[3.2.3.] the Owner has granted (or if the Owner is not a Registered Provider
shall ensure that the Registered Provider shall grant) to the Borough Council
the exclusive right to nominate suitable households in Housing Need to the
Affordable Dwellings in that phase in accordance with the Borough Council’s
published Allocations Scheme and the provisions of this Deed and on the
terms set out in the Deed of Nomination Rights
3.2.[3.3.] The Owner covenants that it shall provide evidence of the transfer of the freehold or
leasehold interest of the Affordable Dwellings referred to in Paragraph 3.2.2 of this
Schedule to the Housing and Enabling Manager within 10 Working Days of completion
of the transfer
3.3.[3.4.] The Owner covenants that it shall ensure that the price to be paid for the Affordable
Rented Units by the Registered Provider (or the Borough Council as the case may be)
shall be at a level that allows the Affordable Rented Units to be paid for through rents to
be charged as Affordable Rent
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SUBJECT TO FURTHER INSTRUCTIONS3.4.[3.5.] The Owner covenants that no more than a 25% to 75% share in the Shared
Ownership Units shall be sold to eligible applicants initially and the rent (excluding
service charge) to be charged on the remaining percentage share in the Shared
Ownership Units shall not be more than 3% of the capital value of the unsold equity
in that particular individual Shared Ownership Unit with each subsequent annual rent
increase or increases limited to further increases in the Consumer Prices Index plus
1%
3.5.[3.6.] Unless otherwise agreed by the Borough Council the Owner covenants that it shall
ensure that any proceeds derived from the sale of a Shared Ownership Unit or the
proceeds from the right to buy or right to acquire an Affordable Housing Rental Unit
shall be used by the Registered Provider to re-invest in Affordable Housing within (in
order of priority)
3.5.1.[3.6.1.] the local authority district of Maidstone
3.5.2.[3.6.2.] then Neighbouring Councils
3.5.3.[3.6.3.] then the County of Kent and
3.5.4.[3.6.4.] then the HCA’s East and South East Operating Area (but excluding
the County of Kent)
with priority given to the provision of new dwellings for Affordable Rent
4. Miscellaneous Provisions
4.1. The Owner covenants that prior to Practical Completion of the Affordable Dwellings in
the relevant Phase
4.1.1. all public highways (if any) and public sewerage and drainage serving
the Affordable Dwellings in that phase shall be in place and shall meet all
statutory requirements for such public sewerage and drainage
4.1.2. all private roads footways and footpaths (if any) serving the Affordable
Dwellings in that phase shall be in place and constructed to an adoptable
standard
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SUBJECT TO FURTHER INSTRUCTIONS4.1.3. all private sewage and drainage pipes channels and gutters and all
mains water gas and electricity pipes and cables serving the Affordable
Dwellings in that Phase shall be constructed laid connected operational and
serviceable
5. Exclusions
5.1. SAVE FOR Clause 5.3 (BUT IN ADDITION TO Clause 9) the obligations contained
in this Schedule shall not be binding upon nor enforceable against
5.1.1. any mortgagee or chargee of a Registered Provider of the Affordable
Dwellings or any receiver or manager (including an administrative receiver)
appointed by such a mortgagee or chargee and in the event of any such
mortgagee chargee receiver or manager exercising a power of sale over
the Affordable Dwellings the provisions of this Agreement shall cease to
apply to the Affordable Dwellings over which the power is exercised (as the
case may be) PROVIDED ALWAYS THAT
5.1.1.1. any power of sale available to any such mortgagee charge
receiver or manager arising under their mortgage or charge or
loan over any such Affordable Dwellings shall only be exercised
in the event of there being a default of any obligation to such
mortgage or charge or loan
5.1.1.2. such mortgagee or chargee or any receiver or manager
appointed by such mortgagee or chargee shall first have
notified the Borough Council and the Housing and Enabling
Manager that it wishes to exercise its statutory power of sale
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SUBJECT TO FURTHER INSTRUCTIONS5.1.1.3. within 3 clear calendar months of the date of such notification
the mortgagee or chargee or receiver having used reasonable
endeavours (in consultation with the Borough Council and the
Housing and Enabling Manager) shall have been unable to
transfer the relevant Affordable Dwelling to another Registered
Provider (who shall take subject to the provisions of this Deed)
on terms that on completion thereof the mortgagee or chargee
or receiver shall recover the total sum outstanding under its
charge or mortgage together with all interest cost and expenses
incurred by the mortgagee in respect of the charge or mortgage
5.1.2. a tenant of an Affordable Rented Unit who has exercised a statutory
right to acquire
5.1.3. a tenant of an Affordable Rented Unit who has exercised a statutory
right to buy
5.1.4. a Shared Ownership leaseholder who has acquired 100% of the
shares in the Shared Ownership Unit and
5.1.5. any successor in title of any persons detailed in Sub-Paragraphs 5.1.2
5.1.3 and 5.1.4 or their mortgagee or charge
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SCHEDULE 5: LANDSCAPE AND ECOLOGICAL MANAGEMENT
1. Interpretation of this Schedule
1.1. Unless the context otherwise requires where in this Schedule the following defined
terms and expressions are used they shall have the following respective meanings
and (where applicable) be supplemented by Clause 1.1 and Paragraph 1.1 of the
other Schedules
“Landscaped Areas” means all those communal areas and areas of open
space within the Development (other than privately
owned domestic gardens that form the curtilage of
each Dwelling and/or not identified on the plan in
Paragraph 3.3.2.1 of this Schedule) and shall include
areas of the Land comprising a mixture of formal and
semi-natural areas to be given over to
a) communal landscaping
b) Public Open Space
to be provided remediated monitored managed and
maintained in accordance with this Schedule
“Landscape Management Strategy”
means a landscape strategy to manage monitor and
maintain and where necessary remediate the
Landscaped Areas within the Development which
strategy shall have regard to and be aligned with the
ecological mitigation and enhancement measures to be
provided on the Land
“LEMP” means Landscape and Ecological Management Plan
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“LEMP works” Means the works approved by the Borough Council
pursuant to the LEMP
“Natural England” means the executive non-departmental public body
established pursuant to the Natural Environment and
Rural Communities Act 2006 who is responsible for
ensuring that the natural environment is conserved
enhanced and managed for the benefit of present and
future generations or any successor body that replaces it
“Public Open Spaces” includes those areas within the Development allocated
to
a) ecological mitigation and enhancement including
wildlife/reptile corridor new woodland and tree
planting landscape buffers
b) new water network including new and existing
ponds
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SUBJECT TO FURTHER INSTRUCTIONS2. LANDSCAPE AND ECOLOGICAL MANAGEMENT
2.1. Prior to Commencement of Development the Owner covenants that it shall submit to
and have approved by the Borough Council (acting reasonably) the LEMP insofar as
it relates to ecological management and that it shall not Commence Development
unless and until the LEMP has been submitted to and approved by the Borough
Council
Content of the LEMP
2.2. The content of any LEMP submitted pursuant to this Deed shall include
2.2.1. (save to the extent as may be varied by a European Protected
Species Licence issued by Natural England which must not result in the
reduction in the quality or quantity of mitigation/compensation provided) an
Ecological Design Strategy which strategy shall as a minimum (and without
limitation)
2.2.1.1. identify the purpose and conservation objectives for any
proposed works
2.2.1.2. review site potential and constraints as may be informed by
further appropriate surveys as required
2.2.1.3. provide detailed design(s) and/or working method(s) to achieve
stated objectives (which may comprise a set of method
statements)
[2.2.1.4.] provide for the incorporation of bird and bat boxes and swift
bricks in the fabric of the Dwellings and on trees within the
Landscaped Areas in accordance with the recommendations
contained in the HallumaCalluma Ecological Report provided
as part of the Application
2.2.1.4.[2.2.1.5.] identifying the on-site role and responsibilities of an
ecological clerk of works or similarly competent person
2.2.1.5.[2.2.1.6.] identify the extent and location/area of the proposed
works on appropriately scaled maps and plans
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SUBJECT TO FURTHER INSTRUCTIONS2.2.1.6.[2.2.1.7.] identify the type and source of materials to be used where
appropriate (eg native species of local provenance)
2.2.1.7.[2.2.1.8.] identify a timetable and the triggers for implementation of
the works which works shall be aligned with the proposed
Phasing Plan
2.2.2. A Landscape Management Strategy which strategy shall as a
minimum (and without limitation)
2.2.2.1. identify describe and evaluate all landscape features,
constraints and areas to be managed in relation to a plan
2.2.2.2. identify and describe the long term aims and objectives of
management and maintenance of the areas identified on the
plan and how this is to be secured and achieved
2.2.2.3. where any natural or manmade features are identified including
watercourses streams ponds and ditches details to manage
and maintain such features shall be provided
2.2.2.4. prepare and provide a work schedule (including an annual work
plan capable of being rolled forward over a 5 year period)
2.2.3. The LEMP shall also
2.2.3.1. provide details of the body or organisation responsible for
implementation of the LEMP and associated works and include
details of the legal and funding mechanism(s) by which the
initial aftercare and long-term maintenance of the Landscaped
Area shall be secured and delivered by the Owner
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SUBJECT TO FURTHER INSTRUCTIONS2.2.3.2. provide for on-going monitoring and remedial measures of the
Landscaped Areas and on-going species and habitat
monitoring
2.2.3.3. set out (where the results from monitoring show that
conservation aims and objectives of the LEMP are not being
met) how contingencies and/or remedial action and measures
will be identified agreed and implemented so that the
Development still delivers the fully functioning biodiversity
objectives of the originally approved scheme
Implementation
2.3. Following Commencement of Development the Owner shall implement and adhere to
the approved LEMP and the triggers approved pursuant thereto including any
approved works required
2.4. Following Commencement of Development the Owner shall implement and adhere to
the approved LEMP and carry out the approved LEMP Works to the Borough
Council’s reasonable satisfaction
2.5. The Owner shall not Occupy 25% or more of the last and final Phase unless and until
the LEMP Works shall have been carried out in accordance with the LEMP and
completed to the Borough Council’s satisfaction
2.6. The Owner covenants that
2.6.1. the final certificate of Practical Completion in relation to the
whole Development shall not be issued unless and until all works required
pursuant to the LEMP have been carried out to the Borough Council’s
satisfaction
General
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SUBJECT TO FURTHER INSTRUCTIONS2.7. The Owner shall manage monitor and maintain (including where necessary carry
out such remedial works and measures as may be necessary) the Landscaped Areas
in perpetuity in accordance with the approved LEMP or any subsequent revision or
amendment thereto as may be approved by the Borough Council
2.8. On completion of the LEMP Ecological and Landscaping Works to the Borough
Council’s reasonable satisfaction the Owner covenants to set aside and make
available in perpetuity for use by the public such of the Landscape Areas as are to be
made available to the public in accordance with the LEMP subject to such reasonable
restrictions as may reasonably be required in relation to the ongoing maintenance of
the Landscaped Areas in accordance with the LEMP
2.9. The Owner covenants that no permanent operational development will take place on
the Landscape Areas other than works required or permitted pursuant to the LEMP
or as otherwise permitted under the Planning Permission PROVIDED THAT this will
not prevent the
2.9.1. laying beneath the Landscape Areas of underground pipes cables and
conduits which may be required to supply the Development with electricity
gas water telephone television internet and related services and the
maintenance of the same thereafter or
2.9.2. temporary occupation of and/or operational development on the
Landscape Areas which is temporary and assists construction activities
directly related to the Development PROVIDED THAT this shall be done in
accordance with the LEMP and the Owner shall remove all such temporary
operational development as soon as reasonably practicable after they are
no longer required and the land is restored to the Borough Council’s
satisfaction
Review of the LEMP
2.10. Following approval of a LEMP
2.10.1. the Owner shall be entitled to submit a new or revised LEMP to the
Borough Council for approval by the Borough Council (and following such
approval the LEMP shall take effect as replaced or revised)
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SUBJECT TO FURTHER INSTRUCTIONS2.10.2. on approval the Owner shall implement the new or revised LEMP as
approved by the Borough Council pursuant to this Schedule the Owner
shall pay the Borough Council’s reasonable costs and expenses (including
any professional fees that may be incurred and any abortive costs and
expenses in the event that the new or revised LEMP is withdrawn by the
Owner prior to approval by the Borough Council) associated with assessing
and approving the new or revised LEMP submitted pursuant to this Sub-
Paragraph within 10 Working Days of the date of written notification for
payment by the Borough Council
2.11. Where the Borough Council (in its sole discretion) believes that the extant approved
LEMP requires amendments or revisions in that the LEMP fails to deliver either an
adequate system of monitoring or is not adequately maintained or managed in
accordance with the approved LEMP
2.11.1. the Borough Council may request the Owner to submit within 1
calendar month of the date of such request for approval a new or revised
LEMP for the monitoring management and/or maintenance of the
Landscaped Areas to reflect such amendments or revisions
2.11.2. in the event that a revised LEMP is not submitted within 1 calendar
month of the date of request pursuant to Paragraph 2.11.1 or is not
approved within 3 calendar months of such request a revised LEMP will be
provided by the Borough Council and the provisions of Paragraph 2.3
and/or 2.4 of this Schedule (as the case may be) shall apply until the
Owner submits a revised LEMP and the same is approved by the Borough
Council
2.11.3. the Borough Council’s reasonable costs and expenses associated with
providing a new or revised LEMP in accordance with this Paragraph 2.11
shall be paid by the Owner to the Borough Council as notified to the Owner
and will be paid within 10 Working Days of the date of notification by the
Borough Council and may be charged on the Owners interest in the Land
2.12. No proposed new or revised LEMP submitted by the Owner to the Borough Council
for approval pursuant to this Schedule shall come into force unless and until it has
been approved by the Borough Council acting reasonably
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SUBJECT TO FURTHER INSTRUCTIONSDisposal or Transfer
2.13. The Owner covenants that it shall not dispose or transfer the Landscape Areas or
any part thereof without the consent of the Borough Council (such consent not to be
unreasonably withheld of delayed)
2.14. IN THE EVENT THAT the Owner proposes to dispose of or transfer the monitoring
maintenance and/or management of the Landscaped Areas to a management
company then
2.14.1. the management company shall be establish as a management
company limited by guarantee for the purposes of monitoring managing
and maintaining the Landscaped Areas in perpetuity
2.14.2. the management company shall carry out the monitoring
management and maintenance of the Landscaped Areas in accordance
with the terms of this Deed and the approved LEMP
2.14.3. the management company shall be funded by means of annual
service charges payable by all owners of the Dwellings
2.14.4. each of the owners of the Dwellings shall be a member of the
management company whose liability shall be set at the equivalent of 1
year’s annual service charge which shall be reflected in the articles of
association of the management company
2.14.5. the Owner shall procure that there is included in the transfer deed of
the freehold or leasehold interest in each of the Dwellings a requirement
that each transferee shall pay an annual service charge to the
management company for the ongoing monitoring maintenance and
management of the Landscaped Areas and the Owner shall ensure that the
annual service charge shall be at a level that allows the management
company to pay for the monitoring management and maintenance of the
Landscaped Areas in accordance with the LEMP to be paid for through the
annual service charge levied against each of the Dwellings
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SUBJECT TO FURTHER INSTRUCTIONS[2.14.6.] prior to any disposal or transfer the Owner shall produce to the Borough
Council a certified copy of the certificate of incorporation of the
management company and evidence of financial viability for at least
52(twofive) years after Practical Completion of the Development as a whole
(as notified to the Borough Council pursuant to Clause 11.1) unless
otherwise agreed in writing with the Borough Council
[2.14.7.] the Owner covenants that it shall not dispose of or transfer the monitoring
maintenance and/or management of the Landscaped Areas without the
prior approval of the Borough Council (acting reasonably) and the Borough
Council may withhold its approval until such time as it is satisfied that inter
alia the proposed disposal or transfer will not undermine the requirements
and objectives of this Schedule
Enforcement of the LEMP
2.15. Without prejudice to the Borough Council’s powers where there is any breach or
non-compliance by the Owner with any term of the approved LEMP for the time being
in force or any of the obligations contained in this Schedule the Borough Council may
[2.15.1.] (and the Owner hereby grants authority for the Borough Council and its
authorised employees and agents) enter the Land with staff contractors
plant and equipment and carry out such steps measures or operations on
the Land as the Borough Council considers to be necessary to (without
prejudice to the generality of the provision) ensure compliance with and/or
to remedy any non-compliance with the approved LEMP andif the Owner
has not remedied such breach within 6 months of written notification of
such breach and
2.15.1.[2.15.2.] recover from the Owner the costs and expenses reasonably
incurred by the Borough Council in remedying such non-compliance (which
shall be paid within 10 Working Days of the date of notification for payment
from the Borough Council and may be charged on the Owners interest in
the Land)
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SUBJECT TO FURTHER INSTRUCTIONSPROVIDED THAT the Borough Council shall (unless otherwise agreed by the
Borough Council) give the Owner not less than 20 Working Days3 months prior
notice of its intention to remedy such non-compliance to allow the Owner an
opportunity to remedy the same themselves
General
2.16. The Owner shall have due regard to any requirements and/or recommendations
made by the Borough Council in relation to the drafting and operation of any LEMP
submitted pursuant to the terms of this Deed and/or any subsequent review or
amendment thereto
2.17. Any LEMP approved pursuant to this Schedule shall be deemed to be incorporated
within this Deed and enforceable by the Borough Council as part of this Deed
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SUBJECT TO FURTHER INSTRUCTIONS
APPENDIX 1: PLAN
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SUBJECT TO FURTHER INSTRUCTIONS
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Land at Barty Farm (14/506738/OUT) Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONS
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Land at Barty Farm (14/506738/OUT) Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONS
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Land at Barty Farm (14/506738/OUT) Draft s.106 Agreement @ 14.2.17
SUBJECT TO FURTHER INSTRUCTIONS
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Land at Barty Farm (14/506738/
OUT) Draft s.106 Agreement
@ 14.2.17SUBJECT
TO FURTHER
INSTRUCTIONS
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